Since President Obama has nominated someone for the Supreme Court vacancy, it is tim we took a look at his judicial philosophy. First, a little about him personally and professionally. Judge Merrick Garland was born in Illinois, raised near Chicago, received his law degree from Harvard, one of the usual cast of schools from which SCOTUS members are typically drawn. By all accounts Judge Merrick is really bland, but more on that below. In 1997, he was appointed by President Clinton to the District of Columbia Circuit Court, one of the most important appeals courts in the United States due to the types of cases it often hears and the fact that many of its decisions make it to the Supreme Court. Garland’s nomination was held up for a time, but he was finally confirmed by a pretty large margin. Nineteen years later, he is Chief Judge of that court.
His supporters and President Obama have cast Judge Merrick as a moderate. But we need to look a little more closely at that claim. First, he is moderate compared to the possible candidates who were not nominated, for example, Loretta Lynch or Sri Srinivasan. If the choice were to come down to Garland or a Hillary Clinton nominee, I would probably advise confirmation of Garland before anyone. The decisions in which he has had a hand can be seen on Scotusblog in an article written back in 2010 when Judge Garland was on President Obama’s short list then (See http://www.scotusblog.com/2010/04/the-potential-nomination-of-merrick-garland/).
There are three areas in which Garland appears not to be as moderate as the media make him out to be. First is his views on Second Amendment rights. Scotusblog reported that
“Garland also notably voted in favor of en banc review of the D.C. Circuit’s decision invalidating the D.C. handgun ban, which the Supreme Court subsequently affirmed. Garland did not take a formal position on the merits of the case. But even if he had concluded that the statute was constitutional, that view of the case would have conformed to the widespread view that, under existing Supreme Court precedent, the Second Amendment did not confer a right to bear arms unconnected to service in a militia. Parker v. District of Columbia, 478 F.3d 370 (2007).”
This statement makes Garland’s vote non-committal and merely procedural on gun rights. But Judge Garland had earlier voted against Second Amendment rights in a 2000 case, NRA v. Attorney General, Janet Reno, in which he concurred with his liberal colleague Judge Tatel, in which the NRA challenged the Federal government’s establishment of a gun registry and background check system as an unconstitutional violation of Second Amendment rights. On appeal, Tatel and Garland concluded that
“We see no basis for concluding that auditing the [National Instant Criminal Background Check System] would suddenly produce constitutional violations. Nor does the NRA identify any specific features of the auditing process that implicate constitutionally protected rights.” (NRA v. Attorney General)
Here it appears that Garland’s opposition in Second Amendment cases is substantive, possibly hostile. But no matter what one thinks about background checks, and some conservatives do accept these, the fact is that most conservatives do not accept their constitutional validity and so they correctly view Garland as suspect on gun rights.
Possibly more important however is Garland’s generally favorable view toward government regulation and agency action. His participation is such cases indicates a definitely deferential attitude to delegation and agency actions. I hate to provide such a long quote from the Scotusblog analysis, but I will no doubt be criticized if I don’t do it:
Judge Garland has strong views favoring deference to agency decisionmakers. In a dozen close cases in which the court divided, he sided with the agency every time. FedEx Home Delivery v. NLRB, 563 F.3d 492 (2009) (Garland, J., dissenting) (dissenting from panel opinion overturning NLRB’s designation of workers as employees rather than contractors); Northeast Bev. Corp. v. NLRB, 554 F.3d 133 (2009) (Garland, J., dissenting) (dissenting from panel opinion overturning NLRB’s determination that certain conduct was protected under Section 7 of the NLRA); Financial Planning Ass’n v. SEC, 482 F.3d 481 (2007) (Garland, J., dissenting) (dissenting from panel opinion of Rogers, J., joined by Kavanaugh, J., invalidating SEC rule exempting broker-dealers from Investment Advisor Act in certain circumstances); Alpharma v. Leavitt, 460 F.3d 1 (2006) (per Garland, J.) (upholding FDA determination to approve drug, over partial dissent by Williams, S.J.); Secretary of Labor v. Excel Mining, 334 F.3d 1 (2003) (per Garland, J.) (joined by Rogers, J., upholding citations against mine operator issued by Secretary of Labor; over dissenting opinion of Sentelle, J.); Train v. Veneman, 310 F.3d 747 (2002) (joining opinion of Rogers, J., upholding Secretary of Agriculture’s implementation of subsidy program, over dissent of Sentelle, J.); American Corn Growers Ass’n v. EPA, 291 F.3d 1 (2002) (Garland, J., dissenting in part) (dissenting from majority opinion upholding industry challenge to part of EPA’s anti-haze regulations), after remand Util. Air Reg. Group v. EPA, 471 F.3d 1333 (2006) (Garland, J., on panel upholding regulations); Ross Stores v. NLRB, 234 F.3d 669 (2001) (Garland, J., dissenting in part) (dissenting from panel’s determination to overturn NLRB’s finding that employer unlawfully admonished employee for engaging in union solicitation);NRA v. Reno, 216 F.3d 122 (2000) (joining opinion of Tatel, J., upholding regulations implementing Brady Act; over dissent of Sentelle, J.); Iceland Steamship Co., Ltd. v. U.S. Dep’t of Army, 201 F.3d 451 (2000) (joining opinion of Sentelle, J., to uphold Army Contracting Officer’s decision; over dissent of Henderson, J.); American Trucking Ass’n v. U.S. E.P.A., 195 F.3d 4 (1999) (Tatel, J., dissenting from the denial of rehearing en banc) (Garland, J., joins dissent from denial of rehearing en banc of invalidation of EPA regulations under non-delegation doctrine), rev’d Whitman v. American Trucking Ass’ns, 531 U.S. 457 (2001); Appalachian Regional Healthcare, Inc. v. Shalala, 131 F.3d 1050 (1997) (joining opinion of Silberman, J., upholding interpretation of Social Security Act; over dissent by Sentelle, J.).
Notice that Garland often joins with Judge Tatel in opinions. Each of these represents Garland’s basically liberal attitude toward governmental regulations. Again, whether one agrees with that or not, it does make him suspect to conservatives.
Finally, Garland has ruled for the Federal government on Guantanamo detainee cases, but it is not clear he was doing anything more than following the case authority precedent set by the SCOTUS.
So how does one summarize Garland’s judicial philosophy. I would say first that he is not right of center, but left of center. He certainly does not sound like an Originalist, which raises a very important question about Originalism itself. Carrie Severino has brought this question to the forefront in a blog entitled “What Is a Moderate Interpretation of a Text, Anyway?” in National Review Online, March 18, 2016, quoting Justice Scalia: “What is a ‘moderate’ interpretation of the text? Halfway between what it really means and what you’d like it to mean?” Originalism has no necessary relationship to modern conservatism, but it touches conservatism because conservatives like to “conserve” what they believe is best for the nation, in this case, the principles underlying the Constitution, which are embodied in the words themselves in their historical context. They believe those words gave us timeless principles that ought to continue to be applied. In that sense, Judge Garland is simply not a conservative and would not bring any aspect of Originalism to the court if confirmed.
Finally, for those Christians who might be curious as to how Judge Garland would treat religious liberty, I have nothing to offer. Judge Garland has not been involved in any significant cases involving issues like that—or abortion rights cases. But unless I miss my guess, he would likely view both religious liberty and abortion much the same as his liberal associates. No “left of center” justice is prone to go against the grain on those issues, though he would be more likely to deviate from more liberal justices on religious liberty issues. The case law itself is just not well-developed yet.